1.Challenge
in these appeals and writ petition are to the order passed by a Division Bench
of the Madhya Pradesh High Court. By a common order several Letters Patent
Appeals were disposed of. The Letters Patent Appeals were filed by present
respondents on the ground that they have been employed asElectricians since
1987 as workmen under Appellant No.1 i.e. National Thermal Power Corporation
(in short the `Corporation') for maintenance of Korba Super Thermal Power
Project colonies. Though the writ petitioners were not directly employed by the
Corporation, but were employed through contractor. Prior to such engagement
they were employed through other contractors. It was the stand in the writ
petition that their work was supervised by competent officers of the
Corporation and the materials for their job were supplied by the Corporation
and they worked for the colonies owned and controlled by the Corporation and
series of contracts have been entered into by the Corporation with the
contractor. It was therefore their stand that they have to be treated as
employees of the Corporation. It was stated that the Corporation wanted to
avoid absorption of contract labour despite their perennial nature of work.
With a view to frustrate mandate of this Court, they engaged them on job work
basis and the whole endeavour was to defeat the absorption of the contract
labours. It was claimed before the learned Single Judge that the M.P.
Industrial Relation Act, 1960 (in short 2`1960 Act') governs the conditions of
the employment between the Corporation and the contract labour and they were
entitled to the same wages as the workmen of the Corporation and there can be
abolition of the contract labour on regular basis.

2.Returns
were filed by the Corporation. Stand of the Corporation was that it is a
registered establishment under Section 7 of the Contract Labour (Regulation and
Abolition) Act, 1970 (in short the `Act'). The contractor who was impleaded as
respondent No.4 in the writ petitions was awarded the contract after inviting
tenders. The contractor employed writ petitioners and there was no relationship
of masters and servants between the Corporation and the writ petitioners. It
was canvassed that the writ petitioners had initiated conciliation proceedings
under the 1960 Act and once they have taken recourse to alternative remedy
available to them under industrial law they cannot invoke the extraordinary
jurisdiction of the Court. The contractor who was impleaded as respondent No.4
supported the stand of the 3Corporation and its functionaries. It was stated
that it is a partnership firm and it had full control over the employees as the
salaries were being paid by the firm. It was also stated that it had obtained a
licence under Section 12 of the Act and was entitled to engage 75 workmen as
per the said licence. It was pointed out that the writ petitioners were not
permanent employees and their services last during the continuance of the
contract and it had come to an end after the term of the contract had expired.

3.Before
the learned Single Judge it was urged by the writ petitioners that the
provisions of 1960 Act are applicable to the Corporation and inasmuch as in
Item No.10 of the Notification dated 31.12.1960, there is a mention that the
said Act is applicable to electricity generation and distribution in which the
Corporation was engaged and was thus covered by all corners of the Statute.

4.Reliance
was placed by the present appellants on Entries 22, 23 and 24 of the concurrent
list of Schedule VII of the 4Constitution of India, 1950 (in short
`Constitution') to buttress the contention that once legislation is passed by
the Parliament in respect of any field covered under the Concurrent List, the
same would have preference over the State law.

5.It
was also submitted that Act in essence obliterated the definition of employer
and employee under the 1960 Act.

Learned Single Judge
held that there was hardly any doubt that the relationship of employer and
employee is established;

that the Act is
applicable to the writ petitioners and, therefore, they cannot rely on the
provisions of 1960 Act for enforcing their claim. It was also held that they
being the contract labours are not employees of the Corporation within the
meaning of Section 2(13)(a) read with sub-clause (e) of Section 2(14) of 1960
Act after coming into force of the Act.

6.A
prayer had been made by the writ petitioners to absorb them as its workmen for
the Corporation as they are contract labours. Learned Single Judge held that
there was no 5Notification issued by the appropriate government abolishing the
contract labour under Section 1 of the Act. There was no scope for granting any
relief. It was held that the decision in Air India Statutory Corporation etc.
v. United Labour Union and Ors. etc. (AIR 1997 SC 645) does not apply to the
facts of the case.

7.Before
the Division Bench, stand of the writ petitioners who were the appellants was
that learned Single Judge was not justified in holding that 1960 Act had no
application because of the Act inasmuch as no Notification was issued under
Section 10 of the Act and in the absence of a Notification the conclusion
arrived at is bound to suffer.

8.Stand
of the present appellants was that the writ petitioners cannot claim to be
employees of the principal employers and the question of absorption does not
arise in view of what has been stated by this Court in Steel Authority of India
Ltd. v. National Union Waterfront Workers (2001 (7) 6SCC 1) which inter-alia
over-ruled the earlier decision in Air India's case (supra).

9.The
High Court held that the object of the Act was to regulate the employment of
the contract labour in certain establishments and to provide for its abolition
in certain circumstances and the matters connected therewith.

Reference was made to
Sections 21 and 30 of the Act and it was held that though there was an
over-riding effect yet the beneficial provision of the statute was not
extinguished. It was further observed that once Notification is issued under
Section 10 of the Act the matter would be different and the decision rendered
by this Court in Steel Authority's case (supra) would be applicable in full
force. In the absence of Notification the other general relevant law would be
applicable. With reference to various provisions of 1960 Act it was held that
there can be reconciliation of both the decisions rendered by Division Benches
of the High Court. When there is a dispute with regard to wage structure qua
class of employees they have to move the Labour Court as per the provisions of
Sections 51 7and 52 of the 1960 Act and if it is an individual, he can move the
High Court under Schedule II. Accordingly, it was held that the view of learned
Single Judge was not correct.

10.In
support of the appeals, learned counsel for the appellants submitted that the
ratio in Steel Authority's case (supra) has not been appreciated. It was
further pointed out that the direction was for absorption and further that the
contract labours should be abolished. It was pointed out that the effect of
registration under Section 7 and the licence issued has not been considered.
Similarly, the effect of Rule 25 has been lost sight of. It is pointed out that
the effect of Article 254 has also not been considered. According to learned
Solicitor General repugnancy is irrelevant for Sub- Article (2) of Article 254.
It is pointed out that the Act refers to regulation and abolition. Section 10
begins with non-obstante clause. Section 7 relates to registration. The
employment of contract labour is not prohibited. Only prohibition can be
imposed by issuing a Notification.

11.It
is pointed out that in Article 254 the question of Presidential assent is also
there. It is, therefore, submitted that the judgment of the Division Bench is
unsustainable.

12.In
response, learned counsel for the respondents submitted that the High Court's
view is in line with the beneficial legislation which intends to protect the
contract labour from exploitation.

"10. The CLRA
Act was enacted by Parliament to deal with the abuses of the contract labour
system. It appears that Parliament adopted twin measures to curb the abuses of
employment of contract labour - the first is to regulate employment of contract
labour suitably and the second is to abolish it in certain circumstances. This
approach is clearly discernible from the provisions of the CLRA Act which came
into force on 10-2-1971.

A perusal of the
Statement of Objects and Reasons* shows that in respect of such categories as
may be notified by the appropriate Government, in the light of the prescribed
criteria, the contract labour will be abolished and in respect of the other
9categories the service conditions of the contract labour will be regulated.
Before concentrating on the relevant provisions of the CLRA Act, it may be
useful to have a bird's-eye view of that Act. It contains seven Chapters.

Chapter I has two
sections; the first relates to the commencement and application of the Act and
the second defines the terms used therein.

Chapter II which has
three sections provides for the constitution of a Central Advisory Board by the
Central Government and a State Advisory Board by the State Government and
empowers the Boards to constitute various committees. Chapter III contains
regulatory provisions for registration of establishments which employ contract
labour. Section 10 which prohibits the employment of contract labour falls in this
Chapter; we shall revert to it presently. Chapter IV contains provisions for
purposes of licensing of contractors to make sure that those who undertake or
execute any work through contract labour, adhere to the terms and conditions of
licences issued in that behalf. Power is reserved for revocation, suspension
and amendment of licences by the Licensing Officer and a provision is also made
for appeal against the order of the Licensing Officer. Chapter V takes care of
the welfare and health of contract labour obliging the appropriate Government
to make rules to ensure that the requirements of canteen, restrooms and other
facilities like sufficient supply of wholesome drinking water at convenient
places, sufficient number of latrines and urinals accessible to the contract
labour in the establishment, washing facilities and first-aid facilities, are
complied with by the contractor. Where the contractor fails to provide these
facilities the principal employer 10 is enjoined to provide canteen, restrooms
etc., mentioned above, for the benefit of the contract labour. Though the
contractor is made responsible for payment of wages to each worker employed by
him as contract labour before the prescribed period yet for effective
implementation of this requirement, care is taken to ensure presence of a
nominee of the principal employer at the time of the disbursement of wages.
Here again, it is prescribed that if the contractor fails to pay the wages to
the contract labour, the principal employer shall pay the full wages or unpaid
wages, as the case may be, to the contract labour and a right is conferred on
him to recover the same from the amount payable to the contractor; if however,
no amount is payable to him then such amount is treated as a debt due by the
contractor to the principal employer. Chapter VI deals with the contravention
of the provisions of the Act, prescribes offences and lays down the procedure
for prosecution of the offenders.

Chapter VII is titled
"Miscellaneous" and it contains eight sections which need not be
elaborated here."

"53. Our
conclusions and answers to the questions raised are, therefore, as follows:

(i) In view of the
provisions of Section 10 of the Act, it is only the appropriate Government
which has the authority to abolish genuine labour contract in accordance with
the provisions of the said section. No court including the industrial
adjudicator has jurisdiction to do so.

(ii) If the contract
is a sham or not genuine, the workmen of the so-called contractor can raise an
industrial dispute for declaring that they were always the employees of the
principal employer and for claiming the appropriate service conditions. When
such dispute is raised, it is not a dispute for abolition of the labour
contract and hence the provisions of Section 10 of the Act will not bar either
the raising or the adjudication of the dispute.

When such dispute is
raised, the industrial adjudicator has to decide whether the contract is a sham
or genuine. It is only if the adjudicator comes to the conclusion that the
contract is a sham, that he will have jurisdiction to adjudicate the dispute.
If, however, he comes to the conclusion that the contract is genuine, he may
refer the workmen to the appropriate Government for abolition of the contract
labour under Section 10 of the Act and keep the dispute pending. However, he
can do so if the dispute is espoused by the direct workmen of the principal
employer. If the workmen of the principal employer have not espoused the
dispute, the adjudicator, after coming to the conclusion that the contract is
genuine, has to reject the reference, the dispute being not an industrial
dispute within the meaning of Section 2(k) of the ID Act. He will not be
competent to give any relief to the workmen of the erstwhile contractor even if
the labour contract is abolished by the appropriate Government under Section 10
of the Act.

(iii) If the labour
contract is genuine a composite industrial dispute can still be raised for
abolition of the contract labour and their absorption. However, the dispute
will have to be raised invariably by the direct employees of the principal
employer. The industrial adjudicator, after receipt of the reference of such
dispute will have first to direct the workmen to approach the appropriate
Government for abolition of the contract labour under Section 10 of the Act and
keep the reference pending. If pursuant to such reference, the contract labour
is abolished by the appropriate Government, the industrial adjudicator will
have to give opportunity to the parties to place the necessary material before
him to decide whether the workmen of the erstwhile contractor should be
directed to be absorbed by the principal employer, how many of them and on what
terms. If, however, the contract labour is not abolished, the industrial adjudicator
has to reject the reference.

(iv) Even after the
contract labour system is abolished, the direct employees of the principal
employer can raise an industrial dispute for absorption of the ex-contractor's
workmen and the adjudicator on the material placed before him can decide as to
who and how many of the workmen should be absorbed and on what terms."

15.Similarly,
the view of this Court in Municipal Corporation of Greater Mumbai v. K.V.
Shramik Sangh and Ors. (2002 (4) SCC 609) is relevant. The position in law
which has considerable effect on the present dispute was noted as follows:

"16. In a recent
Constitution Bench judgment of this Court in Steel Authority of India Ltd. v.

National Union
Waterfront Workers, Air India case1 is specifically overruled. In the said
judgment, after referring the various decisions of this Court including the
decisions cited before us and on elaborate consideration and analysis, the
Constitution Bench in para 125 of the said judgment, outlined the conclusions.

To the extent they
are relevant for the present purpose read: (SCC pp. 61-63) "125. The
upshot of the above discussion is outlined thus:

(1)(a)-(2)(b) * * *
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act,
whether expressly or by necessary implication, provides for automatic
absorption of contract labour on issuing a notification by the appropriate
Government under sub-section (1) of Section 10, prohibiting employment of
contract labour, in any process, operation or other work in any establishment.
Consequently the principal employer cannot be required to order absorption of
the contract labour working in the establishment concerned.

(4) We overrule the
judgment of this Court in Air India case prospectively and declare that any
direction issued by any industrial adjudicator/any court including the High
Court, for absorption of contract labour following the judgment in Air India
case shall hold good and that the same shall not be set aside, altered or
modified on the basis of this judgment in cases where such a direction has been
given effect to and it has become final.

(5) On issuance of
prohibition notification under Section 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in an industrial dispute brought
before it by any contract labour in regard to conditions of service, the
industrial adjudicator will have to consider the question whether the
contractor has been interposed either on the ground of having undertaken to
produce any given result for the establishment or for supply of contract labour
for work of the establishment under a genuine contract or is a mere
ruse/camouflage to evade compliance with various beneficial legislations so as
to deprive the workers of the benefit thereunder.

If the contract is
found to be not genuine but a mere camouflage, the so-called contract labour
will have to be treated as employees of the principal employer who shall be
directed to regularize the services of the contract labour in the establishment
concerned subject to the conditions as may be specified by it for that purpose
in the light of para 6 hereunder.

15 (6) If the
contract is found to be genuine and prohibition notification under Section 10
(1) of the CLRA Act in respect of the establishment concerned has been issued
by the appropriate Government, prohibiting employment of contract labour in any
process, operation or other work of any establishment and where in such
process, operation or other work of the establishment the principal employer
intends to employ regular workmen, he shall give preference to the erstwhile
contract labour, if otherwise found suitable and, if necessary, by relaxing the
condition as to maximum age appropriately, taking into consideration the age of
the workers at the time of their initial employment by the contractor and also
relaxing the condition as to academic qualifications other than technical
qualifications."

Para 126 of the same
judgment reads: (SCC p.63) "126. We have used the expression `industrial
adjudication' by design as determination of the questions aforementioned
requires enquiry into disputes questions of facts which cannot conveniently be
made by High Courts in exercise of jurisdiction under Article 226 of the
Constitution. Therefore, in such cases the appropriate authority to go into
those issues will be the Industrial Tribunal/Court whose determination will be
amenable to judicial review."

19. Now, we proceed
to consider the validity and correctness of the impugned judgment and order in
the light of judgment of the Constitution Bench in SAIL case. The High Court
held that the work entrusted to the members of the Union continued to be
basically the work of the Corporation itself of perennial nature; the
Corporation has chosen to carry out the work under the so-called system of
labour contract without complying with the provisions of the CLRA Act and as
such the labour contract was a camouflage.

We must state here
itself that the Union in the writ petition alleged that the labour contract was
a sham and the Corporation specifically denied it in its counter-affidavit but
the High Court did not go into this question and did not record a finding that
the labour contract in the present case was a sham or a camouflage considering
the material on record; even otherwise, this being a serious and disputed fact
in terms of the Constitution Bench judgment aforementioned, the High Court
could not have appropriately adjudicated on the issue exercising jurisdiction
under Article 226 of the Constitution. It appears to us that the High Court proceeded
to conclude that the labour contract was not genuine and the workers of the
Union were employees of the Corporation because the Corporation and the
contractors did not comply with the provisions of the CLRA Act. Conclusion that
the contract was a sham or it was only a camouflage cannot be arrived at as a
matter of law for non-compliance with the provisions of the CLRA Act but a
finding must be recorded based on evidence, particularly when disputed by an
industrial adjudicator as laid down in various decisions of this Court
including the Constitution Bench judgment in SAIL. The cases on which the High
Court placed reliance were the cases where finding of fact was recorded by the
Labour Courts on evidence. In para 34 of the impugned judgment, it is stated:

"This Court is
hardly competent to record evidence or appreciate it in exercise of its powers
under Article 226 of the Constitution. This Court as well as the Supreme Court
have always taken the view that writ jurisdiction should not be permitted to be
invoked if disputed questions of facts are involved, is the submission of the
learned counsel. The submissions are wholly unexceptionable. If the facts were
not clear, we would have hardly allowed our writ jurisdiction to be invoked.
The material which we have referred to at several places hereinbefore, is more
than adequate, in our view, to come to the conclusion we have arrived at."

20. The material
referred to relates to the complaints of the Union, recommendations of the
Labour Commissioner, Labour Minister and the Labour Contract Advisory Board in
regard to abolition of contract labour under Section 10 of the CLRA Act, but
that material could not be a foundation or basis to say that the labour
contract was a sham, a camouflage or a devise* to deny the statutory benefits
to the workers. From the judgment under challenge, it is clear that Air India
case weighed with the High Court, which judgment now stands overruled as
already stated above.

The High Court
rejected the contention that jurisdiction to abolish the contract labour system
vested with the appropriate government under Section 10 of the CLRA Act and
that power could be exercised after obtaining advice of the Contract Labour
Advisory Board which in turn had to keep in mind several factors enumerated in
clauses (a) to (d) of Section 10(2) of the CLRA Act stating that in the present
case in almost 15 years, there was no registration of the principal employer;
none of the contractors ever held a licence under the Act; the work that was
being carried on fell within the parameters of clauses (a) to (d) of Section
10(2) of the Act and having regard to what was said by the Chairman, Standing
Committee of the Corporation and the contractors and the recommendation of the
Labour Commissioner to abolish the contract labour system. Further, the
Minister for Labour of the Government of Maharashtra went on to record in clear
terms that the Government had taken a decision to abolish the system of
contract labour in the Solid Waste Management Department of the Corporation,
the High Court thought that there was sufficient material for abolishing the
contract labour system. The High Court drew an inference that the State
admitted that all the requirements were satisfied for acting under Section
10(2) but because of the election code of conduct it was unable to act and
passed order for absorption of workers 19 saying that it had no impediment to
do so in view of its conclusions. Referring to Air India case the High Court
observed that the said judgment suggested that a contract labour system can be
said to be genuine only if it is carried in compliance with the provisions of
the CLRA Act and anything contrary thereto would lead to the presumption that
the purported contract labour system was merely a device and a sham. In our
view, the conclusion of the High Court that the contract labour system in the
present case was a sham, cannot be sustained in the light of what is stated
above and particularly when the disputed questions of fact arose for
consideration in the light of rival contention raised by the parties. We have
detailed them above to say so.

28. As laid down in
the Constitution Bench judgment, absorption of contract labourers cannot be
automatic and it is not for the court to give such direction. Appropriate
course to be adopted is as indicated in para 125 of the said judgment in this
regard. Thus having considered all aspects, we are of the view that the
impugned judgment and order cannot be upheld."

16.Article
254 of the Constitution is also relevant. It reads as follows:

"254.
Inconsistency between laws made by Parliament and laws made by the Legislatures
of 20 States.-(1) If any provision of a law made by the Legislature of a State
is repugnant to any provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or
after the law made by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the Legislature of the
State shall, to the extent of the repugnancy, be void.

(2) Where a law made
by the Legislature of a State with respect to one of the matters enumerated in
the Concurrent List contains any provision repugnant to the provisions of an
earlier law made by Parliament or an existing law with respect to that matter, then,
the law so made by the Legislature of Such State shall, if it has been reserved
for the consideration of the President and has received his assent, prevail in
that State:

Provided that nothing
in this clause shall prevent Parliament from enacting at any time any law with
respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State."

17.In
Sub-Article (1) of Article 254 it has been clearly indicated that the competing
legislations must be in respect of one of the matters enumerated in the
concurrent list. It lays down the general rule and clause (2) is an exception
thereto.

The proviso qualifies
the exception. In Deep Chand v. State of Uttar Pradesh and Ors. (AIR 1959 SC
648) the following principles were laid down to ascertain whether there is
repugnancy or not. The test was (1) whether there is direct conflict between
two provisions; (ii) whether the legislature intended to lay down an existing
code in respect of the subject matter replacing the earlier law; and (iii)
whether two laws occupy the same field. In Zaverbhai Amaidas v. State of Bombay
(AIR 1954 SC 752) it was pointed out that the important thing to consider with
reference to this provision is whether the legislation is "in respect of
the same matter". If the latter legislation deals not only with the
matters which formed the subject of the earlier legislation but with other
distinct matters though of a cognate and allied character, then Article 254(2)
will have no application.

"It would be
seen that so far as clause (1) of Article 254 is concerned it clearly lays down
that where there is a direct collision between a provision of law made by State
and that made by the Parliament with respect to one of the matters enumerated
in the Concurrent List, then subject to the provisions of Clause (2) the State
law would be void to the extent of repugnancy. This naturally means that where
both the State and the Parliament occupy the field contemplated by Concurrent
List then the Act passed by Parliament being prior in point of time will
prevail and consequently the State Act will have to yield to the Central Act.
In fact, the Scheme of the Constitution is a scientific and equitable
distribution of legislative powers between Parliament and the State
Legislatures. First, regarding the matters contained in List I, i.e. the Union
List to be Seventh Schedule, Parliament alone is empowered to legislate and the
State Legislatures have no authority to make any law in respect of the Entries
contained in List I.

Secondly, so far as
Concurrent List is concerned, both Parliament and the State Legislatures are
entitled to legislate in regard to any of the entries appearing therein, but
this is subject to the condition laid down by Article 254(1) discussed above.
Thirdly, so far as the matters in List II, i.e., the State List are concerned,
the State Legislature alone is competent to legislate on them and only under
certain conditions Parliament can do so. It is, therefore, obvious that in such
matters repugnancy may result from the following circumstances:

1. Where the
provisions of a Central Act and a State Act in the Concurrent List are fully
inconsistent and are absolutely irreconcilable, the Central Act will prevail
and the State Act will become void in view of the repugnancy.

2. Where, however,
the law passed by the State comes into collision with a law passed by the
Parliament on an entry in the Concurrent List, the State Act shall prevail to
the extent of the repugnancy and the provisions of the Central Act would become
void provided the State Act has been passed in accordance with Clause (2) of
Article 254.

3. Where a law passed
by the State Legislature while being substantially within the scope of the
entries in the State List entrenches upon any of the Entries in the Central
List the constitutionality of the law may be upheld by invoking the doctrine of
pith and substance if on an analysis of the provisions of the Act it appears
that by the large the law falls within the four corners of the State List, and
entrenchment if any is purely incidental or inconsequential.

4. Where, however, a
law made by the State Legislature on the subject covered by the Concurrent List
is inconsistent with and repugnant to a previous law made by Parliament, then
such a law can be protected by obtaining the assent of the President under
Article 254(2) of the Constitution. The result of obtaining the assent of the
President would be that so far as the State Act is concerned, it will prevail
in the State and overrule the provisions of the Central Act in its
applicability to the State only. Such a state of affairs exist only until
Parliament may at any time make a law adding to, or amending, varying or
repealing the law made by the State Legislature under the proviso to Article
254."

19. Clause (1) of
Article 254 speaks about over-riding effect of a law made by Parliament which
the Parliament is competent to enact. Same is the position in respect of a
provision of existing law with respect of one of the matters enumerated in
concurrent list which is subject to operation of Clause (2). So far as Clause
(2) is concerned when a law is made by the legislature of the State with
respect to one of the matters enumerated in the concurrent list and it contains
any provision repugnant to earlier law made by Parliament or in the existing
law with respect of that matter then the law so made by legislature of the
State shall if it has been reserved for the consideration of the President and
has received the assent prevail in that State. In that case, the assent of the
President becomes the determinative factor. The proviso to Clause (2) curtails
the ambit of Clause (2) by providing that Parliament can enact a law with
respect to the same matter in which the State Legislature has made the law and
by such law the Parliament can add to, amend, vary or repeal the law made by
the legislature of the State. In other words, in terms of the proviso in
Article 254 the legislative power of the Parliament has been enlarged in the
sense that it can add to, amend, vary or repeal the law made by the legislature
of the State.

20. Sections 7, 10
and 12 of the Act have also relevance. The read as follows:

"7.Registration
of certain establishments.- (1) Every principal employer of an establishment to
which this Act applies shall, within such period as the appropriate Government
may, by notification in the Official Gazette, fix in this behalf with respect
to establishments generally or with respect to any class of them, make an
application to the registering officer in the prescribed manner for
registration of the establishment:

Provided that the
registering officer may entertain any such application for registration after
expiry of the period fixed in this behalf, if the registering officer is
satisfied that the applicant was prevented by sufficient cause from making the
application in time.

(2) If the
application for registration is complete in all respects, the registering
officer shall register the establishment and issue to the principal employer of
the establishment a certificate of registration containing such particulars as
may be prescribed.

10. Prohibition of
employment of contract labour-(1) Notwithstanding anything contained in this
Act, the appropriate Government may, after Consultation with the Central Board
or, as the case may be, a State Board, prohibit, by notification in the
Official Gazette, employment of contract labour in any process, operation or
other work in any establishment.

(2) Before issuing
any notification under sub- section (1) in relation to an establishment, the
appropriate Government shall have regard to the conditions of work and benefits
provided for the contract labour in that establishment and other relevant
factors, such as- (a) whether the process, operation or other work is
incidental to, or necessary for the industry, trade, business, manufacture or
occupation that is carried on in the establishment ;

(b) whether it is of
perennial nature, that is to say, it is of sufficient duration having regard to
the nature of industry, trade, business, manufacture or occupation carried on
in that establishment ;

(c) whether it is
done ordinarily through regular workmen in that establishment or an
establishment similar thereto ;

(d) whether it is
sufficient to employ considerable number of whole-time workmen.

Explanation.-If a
question arises whether any process or operation or other work is of 27
perennial nature, the decision of the appropriate Government thereon shall be
final.

12. Licensing of
contractors.--(1) With effect from such date as the appropriate Government may,
by notification in the Official Gazette, appoint no contractor to whom this Act
applies, shall undertake or execute any work through contract labour except
under and in accordance with a licence issued in that behalf by the licensing
officer.

(2) Subject to the
provisions of this Act, a licence under sub-section (1) may contain such
conditions including, in particular, conditions as to hours of work, fixation
of wages and other essential amenities in respect of contract labour as the
appropriate Government may deem fit to impose in accordance with the rules, if
any, made under Section 35 and shall be issued on payment of such fees and on
the deposit of such sum, if any, as security for the due performance of the
conditions as may be prescribed."

.

21. In view of what
has been stated above, the Division Bench was not justified in its conclusions
and on the contrary, learned Single Judge had correctly analysed the position
in law. That being so, Civil Appeals are allowed. There will be no order as to
costs.

22. In view of the
order passed in Civil Appeals no order is necessary to be passed in Writ
Petition 529 of 2005.